Constitution. Curiously, in the next freedom of expression case, Theophanous v Herald Weekly Times Ltd,o Brennan J approached the relevance of the EChR in the same way as McHugh J had in Australian Capital Television. It is difficult to reconcile Brennan J's use of the ECHR in Australian Capital Television and his rejection of it in Theophanous Conclusion p to 1996 the High Court had referred to international law in various cases involving constitutional issues, though such references have not been frequent However, it cannot be said that there was any coherent approach to the use of international law in constitutional interpretation, other than in relation to the external affairs power. There was no in-depth discussion of the role that international law might play in the determination of constitutional issues or why international law might be relevant. Apart from section 51 (29), the Court has been largely reluctant to allow international law to play a significant role though there are some areas where it has been drawn on in aid of particular conclusions. When international law was used, it was generally as an indication of international values, to give added legitimacy to the right being implied into the Constitution, rather than in any determinative way Kirby j's interpretative principle would give international law a greater role to play in constitutional questions, and it is to a discussion of that approach that I will now turn. lbid 240 (1994)124ALR1 37|bd44Constitution.35 Curiously, in the next freedom of expression case, Theophanous v Herald & Weekly Times Ltd,36 Brennan J approached the relevance of the ECHR in the same way as McHugh J had in Australian Capital Television. 37 It is difficult to reconcile Brennan J’s use of the ECHR in Australian Capital Television and his rejection of it in Theophanous. 3. Conclusion Up to 1996 the High Court had referred to international law in various cases involving constitutional issues, though such references have not been frequent. However, it cannot be said that there was any coherent approach to the use of international law in constitutional interpretation, other than in relation to the external affairs power. There was no in-depth discussion of the role that international law might play in the determination of constitutional issues or why international law might be relevant. Apart from section 51(29), the Court has been largely reluctant to allow international law to play a significant role, though there are some areas where it has been drawn on in aid of particular conclusions. When international law was used, it was generally as an indication of international values, to give added legitimacy to the right being implied into the Constitution, rather than in any determinative way. Kirby J's interpretative principle would give international law a greater role to play in constitutional questions, and it is to a discussion of that approach that I will now turn. 35 Ibid 240. 36 (1994) 124 ALR 1. 37 Ibid 44. 9